When Will an Employer be Liable for the Harassment of its Employees by a Third Party?

Imagine your employees are going about their work when a third-party who is present at the workplace makes derogatory statements to them about their place of birth, religion and sexual orientation. Could you, as the employer, be liable on the basis of a complaint made by the employees to the British Columbia Human Rights Tribunal?

This was the difficult question recently tackled by the BC Court of Appeal in Schrenk v. British Columbia (Human Rights Tribunal), 2016 BCCA 146. The answer is, unhelpfully, maybe. The threshold issue is whether the conduct of the third-party could be regarded as discrimination “regarding employment” which would bring it within the coverage of section 13 of the BC Human Rights Code. Certainly, the conduct of the third-party is discriminatory. But if the third-party is not a representative of the employer can the employer be held liable? The Court of Appeal explained its analysis in this way:

“There is a difference between the emotional and psychological burdens imposed upon disadvantaged people as a result of ignorant, malicious, or thoughtless comments made by those they encounter in day-to-day life, and those which amount to discrimination regarding employment. With respect to the former, a human rights tribunal may be able to do nothing. Bigots and xenophobes impose invidious and lasting harms, but they may be avoided on the street without fear of employment-related economic consequences. The subjects of discrimination should not have to bear any economic burden as a result of that discrimination. That is the sphere in which the legislature acted, and that is one of the ills that the Code expressly seeks to address.

Not all insults inflicted upon employees, even in the course of their employment, amount to discrimination regarding employment. Such insults can amount to discrimination regarding employment if the wrongdoer is clothed by the employer with such authority that he or she is able to impose that unwelcome conduct on the complainant as a condition of employment, or if the wrongdoing is tolerated by the employer. If the wrongdoer has no such power or authority, the Tribunal has jurisdiction to consider whether the complainant’s employer played some role in allowing the conduct to occur or continue, in which case the insult is endured as a consequence of employment.”

The three circumstances underlined above are the ones that employers must be careful of in order to avoid potential liability under the Human Rights Code. If a customer, supplier or other third-party engages in discrimination of an employee in your organization, proactive steps should be taken to address the issue to ensure there can be no reasonable basis for concluding that it was, in any way, tolerated or permitted by the employer to continue.

Schrenk v. British Columbia (Human Rights Tribunal), 2016 BCCA 146

Questions relating to the content of this article can be directed to Joseph Shaw.